SEA, SURF, SAND: THE CARIBBEAN COURT OF JUSTICE’S DEVELOPMENTAL APPROACHES TO CARIBBEAN CONSTITUTIONALISM

HOW TO CITE THIS ARTICLE: Peter Jamadar, Sea, Surf, Sand: The Caribbean Court of Justice’s Developmental Approaches to Caribbean Constitutionalism, Online Guest Lecture During The Global South Network Judges Guest Lecture Series, 14 October 2025, https://globalsouthnetwork.com/sea-surf-sand-the-caribbean-court-of-justices-developmental-approaches-to-caribbean-constitutionalism/

About the Author/Speaker: The Honourable Mr. Justice Peter Jamadar was sworn in as a Judge of the Caribbean Court of Justice (CCJ) on July 4, 2019, formally assuming duties on July 15, 2019. He holds a Bachelor of Laws (Hons) from the University of the West Indies (1982) and a Legal Education Certificate from the Hugh Wooding Law School (1984). He was called to the Bar of Trinidad and Tobago the same year.

Justice Jamadar began his career in private practice at his father’s chambers and later as a partner at Jamadar & Kangaloo. He served as a Puisne Judge of the High Court from 1997 and was elevated to the Court of Appeal of Trinidad and Tobago in 2008. Alongside his legal training, he earned a Master of Divinity (First Class Honours) from the University of Toronto in 1997, reflecting his interdisciplinary interests in law, ethics, and spirituality.

Deeply committed to judicial education and reform, Justice Jamadar has served as Chairman of the Judicial Education Institute of Trinidad and Tobago (2009–2019) and is currently Vice President (Programming) of the Commonwealth Judicial Education Institute (CJEI) and Chairman of the Caribbean Association of Judicial Officers (CAJO). Through CAJO, he has led pioneering Caribbean-based research on procedural fairness, judicial well-being, and mindfulness in the judiciary, as well as the development of a Criminal Bench Book and disability inclusion guidelines.

ABSTRACT

This paper explores how the Caribbean Court of Justice (CCJ) has shaped and advanced Caribbean constitutional interpretation and development across the region. It focuses on the CCJ’s constitutionally informed jurisprudence, highlighting its progressive and developmental rights-centric, rights privileging approaches to key areas of legal interpretation. These key areas include: savings law clauses and human rights and freedoms, (ii) the rule of law, protection of the law, and the Basic Structure doctrine, (iii) state contracts, (iv) statutory interpretation, (v) modification first, (vi) gendered judging, (vii) social justice issues, and (viii) preambular clauses.

The metaphor of the Earl Lovelace’s Dragon dancing is used as a unifying thread that symbolises the CCJ’s active role in reclaiming Caribbean jurisprudential sovereignty, freedom, and self-actualisation. It is a call for a distinct and transformative Caribbean jurisprudence, one that is locally rooted, rights-focused, and ideologically emancipated from no-longer-useful colonial legal legacies.

INTRODUCTION

The Dragon¹

‘With the door of his little shack half open, Aldrick worked solemnly on his dragon costume, saying nothing to Basil, the little boy of ten who came from somewhere in the neighbourhood … looking from the costume to Aldrick with a fullness of wonderment and fascination and awe, leaving, only when dark fell, to return next day and the next all through the making of the dragon costume, maintaining that attitude of reverence throughout, as if he were in the presence of holiness …

In truth, it was in a spirit of priesthood that Aldrick addressed his work; for the making of his dragon costume was to him always a new miracle, a new test not only of his skill but of his faith: for though he knew exactly what he had to do, it was only by faith that he could bring alive from these scraps of cloth and tin that dragon, its mouth breathing fire, its tail thrashing the ground, its nine chains rattling, that would contain the beauty and terror that was the message he took … It was in this message that he asserted before the world his self. It was through it that he demanded that others see him, recognise his personhood, be warned of his dangerousness.’

Surf, Sand, Sea – We See Things as We Are

Surf, sand, sea²– these words usually evoke images of Caribbean bliss in the Global North – but there is always more there than meets the eye as first impressions. Anaïs Nin³ has now infamously noted that, ‘we don’t see things as they are, we see them as we are.’ Our preconceptions condition the way we see the world and how we come into relationship with it. In her novel, The Seduction of the Minotaur, Nin tells of two persons, Lillian and Jay, who walk along the Seine River in France:

Together they would walk along the same Sein River, she (Lillian) would see it silky grey, sinuous and glittering, he (Jay) would draw it opaque with fermented mud, and a shoal of wine bottle corks and weeds caught in the stagnant edges.

I have had a similar experience. Our two daughters studied art. They once set about to paint the same scenery. Their paintings hang in my study, similar in many ways, yet also so different in detail.

For English and European colonial powers, the Caribbean may have always been seen and used as a ‘tourist getaway’, even when it hosted plantation economies built on forced labour, epitomised in the use of indentured labour, trafficking in humans, and chattel slavery.

After all, what would you do as a coloniser from the Global North, conditioned by a systemic othering mind-set and driven by economic lust built on commodification––including the commodification of human beings––if you came upon a series of lush islands, with white sand beaches, caressed by warm turquoise-blue waters?

What did they do? Enjoy the bliss and exploit the peoples and lands for their own benefit. Eric Williams’ Capitalism and Slavery, describes it well.⁴ But today is not the day for that exploration. It may be enough to say, that some have opined that Capitalism and Slavery is ‘perhaps the most influential book written in the twentieth century on the history of slavery.’⁵

For locals, and for commentators from the Global South––the colonised, first the indigenous (first peoples), then the imported forced labour––their experiences and reflections are that surf, sand and sea can be tragic reminders of encounters with cruel and inhumane conquerors. Much as the Christian cross can be the reminder for many in the Global South, of the handle of a sword, brandished as a tool of submission, forced conversion, and compulsive labour. For the first peoples of the Americas and Caribbean, it is from ‘over the seas’ and ‘through the surf’ that these colonisers came, in their boats, that landed on the Caribbean’s pristine sand beaches, and turned their turquoise waters, their Caribbean seas, red, with the blood of so many innocents.

The colonisation of our legal imaginations

However, not only were peoples and lands and resources colonised and exploited. The colonisation of our legal imaginations has also been an enduring legacy of the colonial history of Caribbean peoples. And it is this that we want to explore today. In doing so, we too, like Aldrick in Lovelace’s ‘The Dragon Can’t Dance’, seek to ‘bring alive from these scraps of cloth and tin that dragon, its mouth breathing fire, its tail thrashing the ground, its nine chains rattling, that would contain the beauty and terror that [is] the message … asserted before the world,’ the message of our legaland jurisprudential selfhood.

Speaking at Menelik Hall in Sydney, Nova Scotia, Canada, on 31 October 1937, Marcus Garvey, in the context of African communities in the Americas and Caribbean, proclaimed:⁶

We are going to emancipate ourselves from mental slavery because whilst others might free the body, none but ourselves can free the mind. Mind is your only ruler, sovereign. The man who is not able to develop and use his mind is bound to be the slave of the other man who uses his mind …

Whatever that has happened to the man it is his own mind that puts him there. … When you do not use your intelligence, you fall and will be submerged. … Before I close, I want to appeal to you to use your intelligence to work out the real things of life.

These thoughts of Garvey have been immortalised by the Jamaican reggae legend, Bob Marley, in his Redemption Song: ‘Emancipate yourselves from mental slavery; None but ourselves can free our minds.’ How else can we work out, for ourselves, ‘…the real things of life’?

The first Anglo-Caribbean states got independence in the 1960s – that is over 60 years ago. This movement to independence continued into the 1980s.⁷ In fact, from 1958 to 1962 there was a West Indies Federation under the British Caribbean Federation Act, 1956.⁸ This West Indies Federation brought together ten Caribbean territories.⁹ The Federation was dissolved in May 1962, following Jamaica’s referendum to withdraw¹⁰ and Trinidad and Tobago’s decision not to continue – captured in Eric William’s now famous statement that signalled Trinidad and Tobago’s withdrawal: ‘One from ten leaves nought.’¹¹ By August 1962 both Jamaica (6 August) and Trinidad and Tobago (31 August) had become independent states. Thus, the relative recency and some of the textures of the movement to independence for Anglo-Caribbean states.

Whatever else may be said about the Caribbean independence project, this much is certain – it intended (i) a break (freedom) from undemocratic and illiberal past models of governance, (ii) freedom into new beginnings of self-determination, defined by more equitable, inclusive and liberal values and principles, and (iii) the emergence of sovereign states self-defined by their unique circumstances as individual states, regional realities, and proud nations in evolving global contexts.

Insofar as we are considering the colonisation of our Caribbean legal imaginations, however, our freedom in this regard remains somewhat fraught. One notable feature of Anglo-Caribbean independence remains incomplete. Seven independent and sovereign Anglo-Caribbean states still take their final appeals to the Judicial Committee of the Privy Council (JCPC).¹² Of these, Trinidad and Tobago became a Republic in 1976 but still retains the JCPC as its apex /final court of appeal.

Nevertheless, basic questions for Caribbean jurisprudence include: How can Caribbean peoples ‘free ourselves from (this) mental slavery’ that has captured our legal imaginations? Have we been developing a truly Caribbean jurisprudence, and if so, how successfully? It is these two basic questions that I want to address today, as we consider, together: The Caribbean Court of Justice’s Developmental Approaches to Caribbean Constitutionalism.

THE CCJ

Creation and Structures: Intentionally Developmental

If Anglo-Caribbean independence is of relatively recent vintage, the emergence of the CCJ is even more so. After independence, Caribbean states largely kept the Judicial Committee of the Privy Council (JCPC) in London as their final court of appeal. The notable exception was Guyana. In 1970 when Guyana became a Republic, appeals to the JCPC were abolished and the Court ofAppeal of Guyana became that country’s final appellate court.¹³ By the 1970s–1980s, regional leaders began calling for a Caribbean final court, arguing that sovereignty was incomplete while the ultimate appellate authority remained in the UK. For example, in 1989, the Grand Anse Declaration (Grenada) laid out plans for deeper Caribbean integration, including a regional court.¹⁴ In this context, the CCJ was intended to be seen and function as a symbol of and an agency for judicial independence, and of/for regional sovereignty and integration.

The Agreement Establishing the CCJ was signed on 14 February 2001 in Port of Spain, Trinidad and Tobago. The CCJ was formally inaugurated on 16 April 2005, in Port of Spain, which remains the seat of the Court. It is funded by the Caribbean Court of Justice Trust Fund, (‘the Fund’), set up to guarantee the Court’s autonomy and independence, and to insulate it from political or other external interference. The Fund is one of the most innovative features of the CCJ ecosystem. It is designed specifically to guarantee the Court’s financial independence. It was established by CARICOM States in 2004, as a USD100 million endowment (fund), before the CCJ was inaugurated. The Fund is managed by an independent Board of Trustees, not by CARICOM governments. Thus, the CCJ does not depend on annual budgetary allocations from CARICOM governments. And, instead, the Fund’s investment income is used to finance the Court’s operations and expenses.

The Court has a dual jurisdiction. An Original Jurisdiction, which interprets and applies the Revised Treaty of Chaguaramas (2001) (RTC), which established the Caribbean Community (CARICOM) Single Market and Economy (CSME). Here, the CCJ acts as a first and final international law, regional community trade-law court, akin to the European Court of Justice. All CARICOM states¹⁵ and nationals must use the Original Jurisdiction to resolve legal disputes concerning the CSME. Its other jurisdiction is its Appellate Jurisdiction. Here it serves as the final (apex) municipal court of appeal in civil and criminal matters, replacing the JCPC, for territories that have withdrawn from the JCPC and acceded to the appellate jurisdiction of the CCJ, and for Guyana that added the CCJ as a third tier to its legal system. Five Caribbean states have acceded to the Court’s Appellate Jurisdiction: Barbados (2005), Guyana (2005), Belize (2010), Dominica (2015), and Saint Lucia (2023).

As a hybrid court, the same judges of the CCJ sit in both the appellate and original jurisdictions. And there is a recruiting requirement that among the judges selected some must have specialised international (trade) law competencies (qualifications and experience). However, all judges are expected to be knowledgeable and competent in international law and practices relevant to adjudication in the Original Jurisdiction. Apart from its hybrid nature, another unique feature of the CCJ is that in its Original Jurisdiction and under the RTC, apart from CARICOM Member States and the CARICOM Secretariat being able to initiate proceedings, private entities (companies and individuals) can also do so (with special leave of the Court). What this means is that the CCJ is not just a ‘state-to-state’ international court, but one that provides access to justice and rule of law governance in Community trade matters under the CSME, and as well for CARICOM nationals and companies.¹⁶

It may thus already be apparent that the CCJ is a unique court in its structure, funding mechanisms, and dual jurisdictions. In this way it is, from conception and design to implementation, structurally and jurisdictionally developmental ̶ locally imagined, conceived, funded, and rolled out to suit the needs of Caribbean states.

The Dragon is Imagined: A Conscious Developmental Ideology

The Agreement Establishing the Caribbean Court of Justice, expressly states in its first Preambular clause: ‘THE CONTRACTING PARTIES, CONVINCED that the Caribbean Court of Justice will have a determinative role in the further development of Caribbean jurisprudence through the judicial process … HEREBY AGREE as follows.’ This telegraphs both the intention and purpose at the point of inception,¹⁷ for the Court to play a determinative role in the further development of Caribbean jurisprudence.

A decade later, in 2011, Sir Shridath Ramphal, a former Commonwealth Secretary-General¹⁸ and one of the most distinguished Caribbean thinkers and leaders, at the Inaugural Distinguished Lecture Series, of the Trinidad and Tobago Judicial Education Institute, delivered a paper at the Hall of Justice, in Port of Spain, entitled ‘Creating a Regional Jurisprudence’. In that lecture he would state emphatically: ‘Creating a regional jurisprudence is inseparable from the issue of the Caribbean Court of Justice, but there is more besides that needs to be said; more about philosophy than about structures.’¹⁹

Creation was one thing; a conscious ideology is another. Citing the American jurist Oliver Wendell Holmes, who in 1895 asserted: ‘But the present has a right to govern itself so far as it can, and it ought always to be remembered that historic continuity with the past is not a duty; it is only a necessity.’‘²⁰ Sir Shridath would emphasise in the context of our Caribbean realities: ‘Holmes, ofcourse, was right … we all too often make a virtue of that necessity, ignoring our duty to be creative social engineers of the present and enlightened architects of the future.’²¹ This was an outrightideological call for a developmental approach to Caribbean jurisprudence.

It is these insights, some foundational to the Court as written warrant and others aspirational as spoken word uttered by the most distinguished Caribbean personages, that in a sense have defined the banks within which the CCJ’s rivers of jurisprudence have flowed for these past twenty years. Already, its jurisprudence demonstrates the truism: ‘The life of the law has not been logic; it has been experience.’‘²² Indeed, this Caribbean developmental jurisprudence demonstrates that: ‘The law embodies the story of a nation’s development … and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.’²³

Caribbean Jurisprudence: Wither Westminster

What then is Caribbean jurisprudence? No doubt, and as with all the Commonwealth Nations, in the Anglo-Caribbean, our states are shaped by the common law traditions of England, and maybe more loosely of the United Kingdom. From Magna Carta to Caribbean Constitutions, this common law is constitutive – Anglo-Caribbean continuities, with historical and legal antecedents, and defining ones at that. But this is not the whole picture. It is not only the British who colonised the Caribbean – so did the Spanish, French, and Dutch. There are therefore also Roman and civil law legal antecedents and influences at play. In Saint Lucia, for example, there is an operative Saint Lucia Civil Code,²⁴ and in Guyana, Roman-Dutch laws and legal traditions continue to be extant.²⁵ Mixed legal traditions exist in Anglo-Caribbean states.

Beyond these more structural and systemic aspects, Caribbean constitutional law has been in a love-hate relationship with the so-called ‘Westminster Model’ of constitutions – that is, written constitutions supposedly modelled after the British Westminster model.²⁶ In Hinds v R,²⁷ Lord Diplock would assert: ‘… there can be discerned in all those constitutions which have their origin in an Act of the Imperial Parliament at Westminster or in an Order in Council, a common pattern and style of draftsmanship which may conveniently be described as “the Westminster model”.’Leading Caribbean constitutional scholar, Professor Ralph Carnegie, would however critique this claim, suggesting that ‘… when we speak of our Westminster model Constitutions, we are not being lawyers or even political scientists. We are at best being poets.’ ²⁸Indeed, he quite pointedly declares: ‘The conclusion is compelled, therefore, that we are perpetuating a custom whereby the connotation of language cannot be ascertained by grammatical analysis.’²⁹ For him, references to Caribbean constitutions being ‘Westminster models’, had more to do with a need for ‘psychological comfort’ than textual or lived realities.

Why would Professor Carnegie say this? He was writing at a time (in the 1980s) when Caribbean constitutional thinkers were beginning to question the continued uncritical acceptance and even dominance of British constitutional ideas in independent Caribbean states. They began to recognise that the Westminster model, transplanted into the Caribbean, has not flourished but instead has mutated into a ‘Westminster-in-name-only’ system that tended towards, for example, executive dominance and constitutional imbalance (such as consolidating disproportionately Prime Ministerial power). Moreover, Anglo-Caribbean constitutions were not true replicas of Westminster; they are written, supreme, and justiciable – the courts had a constitutional power and duty to review executive and legislative actions (governmental power). Fundamentally, the Anglo-Caribbean constitutional order has shifted from British parliamentary sovereignty to constitutional supremacy.

It may not be an exaggeration to say that what Professor Carnegie was calling for, was the emergence of a distinct Caribbean jurisprudence: (i) rooted in Caribbean realities, (ii) conscious of Caribbean history and society, and (iii) normatively transformative – the law as an instrument to realise the social and moral aspirations of true Caribbean independence. Caribbean constitutions were the vehicles to deliver on this hope. For Carnegie, true independence requires moving beyond Westminster conventions to a jurisprudence of constitutional supremacy and Caribbean self-definition.

However, this is not to say that the conventions of Westminster are no longer instructive or useful, for after all, Lord Diplock is not incorrect when he says that the early Caribbean independent constitutions did have their origins ‘in an Act of the Imperial Parliament at Westminster or in an Order in Council’.³⁰ But it is to say, that ‘Westminster’ ideologies ought not to be uncritically applied in Caribbean contexts. After all, a seed ‘transplanted’ in new soil, in new conditions, and tended by different hands, will grow and flourish in distinct ways.

In fact, and with all credit to the JCPC, the 1963 decision from Nigeria in Adegbenro v Akintola³¹ is illuminating in this regard, as it offers a more accurate jurisprudential approach to this matter of interpreting the so called ‘Westminster model constitutions.’³² Writing for the Board, Lord Radcliffe would explain:

“In this state of affairs, it is vain to look to British Precedent for guidance upon the circumstances in which … a Prime Minister can be dismissed …; and the right of removal which is explicitly recognised in the Nigerian Constitutions must be interpreted according to the wording of its own limitations and not to limitations which that wording does not import.

But … it must be remembered that … the British Constitution “works by a body of understandings which no writer can formulate”; whereas the Constitution of Western Nigeria is now contained in a written instrument in which it has sought to formulatewith precision the powers and duties of the various agencies that it holds in balance. That instrument now stands in its own right; and, while it may be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase … it is in the end the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions …”

I suspect that Professor Carnegie would find this approach to Caribbean constitutional interpretation more agreeable. The developmental jurisprudence of the CCJ has certainly followed along this path and done so enlightened by the insights of Professor Carnegie and other leading Caribbean intellectuals.

Caribbean Jurisprudence: Three Steps Forward

What then may be Caribbean jurisprudence? First, it is necessarily about authentic and indigenous legal thought, principles, insights, methodologies, and philosophies that have emerged from and been developed in Caribbean contexts for Caribbean Peoples. This Caribbean jurisprudence, though it emerges from and through the British common law traditions, seeks to give voice to, express, and manifest distinct Caribbean legal characteristics and values, shaped by Caribbean constitutional principles and frameworks, and grounded in Caribbean social and political realities and aspirations.

Second, it is also about Caribbean identity. Caribbean identities as sovereign democratic states, in which there is constitutional supremacy, and where fundamental rights and freedoms are entrenched (prioritised and privileged). And as well, Caribbean identity as a region, in which regional integration is a cultural, social and economic reality, grounded in the Revised Treaty of Chaguaramas.³³

Third, the idea of Caribbean jurisprudence is deeply philosophical. Professor Simeon McIntosh has poignantly pointed out:³⁴

“Our Constitutions are not merely legal instruments for the distribution of powers and the definition of rights and duties. They embody a moral vision of the good life — a conception of the just political order — that provides the ultimate standard by which the legitimacy of governmental action is to be judged.”

For McIntosh, as also for Carnegie and others, Anglo-Caribbean independence constitutions are not just legal or procedural textual instruments. Rather they are constitutive documents, foundational socio-political moral charters, that express the collective aspirations of post-colonial Caribbean people for true sovereignty, meaningful democratic governance, and the flourishing of fundamental rights and freedoms. Therefore, it is fair to say that in McIntosh’s and Carnegie’s conceptions of Caribbean constitutionalism, constitutional interpretation should be purposive and value laden. It must be grounded in the vision of a just and democratic political order implicit in Caribbean constitutions, which, above all else, constitute a social contract of how Caribbean Peoples should live after colonialism and into their unfolding independent futures.

Caribbean jurisprudence is thus both descriptive (describing the ways – the ‘hows’ and ‘whys’, in which legislators, lawyers, and judicial officers engage the processes of law making, interpretation, and application) and normative (declaring what this Caribbean jurisprudence is and does as a working legal system and set of principles, values, and frameworks that have real life impact in Caribbean societies). Indeed, to assert that Caribbean jurisprudence is developmental, is to recognise that it is an evolving process. Thus, it is responsive to emerging cultural realities, unfolding socio-legal norms, changing human values and experiences, and fluid political and legislative actualities.

To be clear, this development of Caribbean jurisprudence is not a call, per se, for discontinuity from our common law traditions. But, as Sir Shridath has pointed out, in the Caribbean we all too often make a logical virtue of uncritically holding on to the coat tails of our past, and fail to embrace the lived experiences, the philosophical underpinnings, and deep-felt longings of our present-into-the-future.

Caribbean jurisprudence is not a label or a noun or some new form of orthodoxy; it is an ideology and a praxis, an evolving, alive, lived, and working-out-of relevance, meaning, function, and purpose, through the discipline of law and legal systems.

Which also means that Caribbean jurisprudence is not limited in its applicability to the Caribbean. Others may surely drink from its wellsprings. What it does mean, however, is that Caribbean jurisprudence is a self-conscious intellectual and experiential activity, carried out as a work-in-progress in Caribbean contexts.

The Dragon Emerges

There can be no Caribbean jurisprudence separated from social context. That would be like trying to make bread or roti without water and flour. Yet some suggest that Caribbean jurisprudence is more akin to a philosophical and universal endeavour, detached from the sitz im leben, the life settings, of Caribbean peoples, cultures and societies. In this they fail to appreciate the complexities and unique multi-polar and intersecting circumstances of our histories, cultures, and societies. Much like our Caribbean cuisine, for which it would be heretical to insist that it is of one Caribbean flavour, so too with our cultures and societies.

Are there commonalities? Of course they are. Are there also differences? Absolutely! And if so in all these fields, why not also in our jurisprudence? Indeed, the CCJ would say, in McEwan’s case: ³⁵‘Difference is as natural as breathing. Infinite varieties exist of everything under the sun.’ And in that recognition, this Court would demand respect and opportunity for self-actualisation of the claimants in that matter.

Yet, one may still insist, well these other fields are largely phenomenological, not so law. But is that even true? Can we so neatly separate the phenomenological from the jurisprudential? Can law and society stand apart? Can we really separate social context from the law and its making or development? And what of its impact? If we cannot easily do so, then the creation of indigenous jurisprudence may properly require freedom from what some may describe as ‘colonial shackles’, and as well involve the development of legal norms and principles that arise out of, are connected to, and inform the unique lived realities of contemporary Caribbean socio-legal, political, and cultural contexts.

It would seem then, to me, that the Agreement Establishing the CCJ was astute not to speak of ‘a’ Caribbean jurisprudence (as a single universalising monolith), but rather simply about ‘… the further development of Caribbean jurisprudence’. This open-ended approach to the development of Caribbean jurisprudence recognises the Caribbean’s multiple contexts and nuances. One size does not and cannot fit all – and that Imperial Magisterium has finally been recognised as fraught. For if it were otherwise (than fraught), then the common law of South Asia, Africa, the Pacific, the Americas, and the Caribbean would be developing in more exactly uniform ways. The fact that it is not, even as commonalities exist, is therefore instructive.

The Global South understands that difference is as natural as breathing and is to be celebrated; and that this is true as well in the field of law. There are in the Global South states where multiple legal systems co-exist. For example, in several North-African states tribal or customary law, Sharia law, and national/state laws and court systems all function together,³⁶ reflecting the unique socio-legal contexts that exist in these places.

For example, in Nigeria, the interaction of customary/tribal law, Sharia law, and national/state law is noteworthy because of its complexity,³⁷ and as well because the Constitution explicitly recognises plural legal systems. And, in South Africa, the principle of ubuntu has been given legal imprimatur.³⁸ In the interim Constitution of 1993, ubuntu was referred to directly in the post-amble: “… there is a need for understanding but not vengeance, and for reparation but not for retaliation, there is a need for ubuntu, not for victimisation.” And courts have since used ubuntu as a constitutional value underpinning rights and the interpretation of law.³⁹

The Dragon Needs to Dance

Jurisprudentially, there is much at stake in this discourse on Caribbean jurisprudence. Much more than just freedom from some no-longer-useful colonial ideas. What is at stake is the idea of freedom itself – the desire for state selfhood and self/societal-actualisation. The Dragon needs to dance.

The making, interpretation and application of law is epistemological. And therefore, foundational to how we know, and to how we come to know and understand and experience ourselves as people and society. Laws made and exported-imported from across the oceans and imposed in these lands have epistemological implications. The idea of developing Caribbean jurisprudence is therefore deeply epistemological, and in this endeavour, ideological.

Thus, questions arise: To what degrees are the beliefs, truths, assumptions, and justifications that underpin colonial laws still relevant in the Caribbean? Are there foundational Caribbean beliefs, truths, assumptions, and justifications that should underpin our laws? How may these be different? And if they are, how should our laws develop? And how should they be interpreted and applied?

The CCJ’s endeavour, as mandated in its constitutive document, of furthering the development of Caribbean jurisprudence through the judicial process, becomes ultimately an embracing ofCaribbean Nation States’ independence, sovereignty, and democratic aspirations.

The Dragon has Permission to Dance

The Preambular mandate for the development of Caribbean jurisprudence has been acted on by the CCJ as an operating principle. Adrian Saunders, former President of the CCJ, in a lecture delivered in 2018, said:⁴⁰‘In the Agreement establishing the CCJ, Caricom’s leaders expressed the view that Caribbean courts are best equipped to promote the development of a Caribbean jurisprudence. This is a truth that the judges of the JCPC not only recognise but they continually demonstrate it in their judgments, and extra judicially as well.’

Indeed, the CCJ in its decisions has identified the interpretive role of The Agreement Establishing the Court. For example, in Lalchand v Supall, a 2024 decision, it was pointed out that:⁴¹

“The Agreement Establishing the Caribbean Court of Justice, declares that the CCJ ‘will have a determinative role in the further development of Caribbean jurisprudence through the judicial process.’ Dr Michelle Scobie unpacks this objective: ‘… the CCJ was born of a desire for an indigenous judicial system, a Caribbean legal philosophy and ‘Caribbean Common Law’ that would separate the region from the colonial legal heritage.’⁴²It is this responsibility that informs the above analysis and what follows.“

The Dragon Can Dance: Constitutional Common Law

The dance of the Dragon finds its fullest expressions in the CCJs ‘rights-centric, rights-privileging’ jurisprudence. Why and how is the CCJ’s developmental approach to Caribbeanconstitutionalism being enabled and enacted? Given the Anglo-Caribbean’s English colonial history, this development necessarily plays out against the backdrop of English legal principles, practices, and presuppositions, including the common law. In this sense the CCJ is unavoidably engaged in a post-colonial jurisprudence, even as that is also encumbered by the realities of coloniality.⁴³

One significant assertion of indigeneity by the CCJ, is how it is tapping into the inherent developmental potential of the common law: ‘[The] common law is not past the age of childbearing,’⁴⁴ and its evolutionary character, including its capacity for ‘adaptability to the unforeseen and flexibility’⁴⁵ allows for the development of the law. Indeed, the CCJ would note with approval (in a matter about cohabitational relationships):⁴⁶

“Richard Albert explains how decolonial approaches to law making and interpretation are enacted in these times: ‘Once won in the theatre of war, decolonization is now prosecuted in parliaments, courts of law, and the public square. The protagonists are no longer soldiers and generals; they are politicians, lawyers, judges, and civil society.’⁴⁷Writing about the Caribbean Court of Justice (‘CCJ’), Albert would opine: ‘… it is a decolonial institution with a decolonial mission, intended to “repatriate to the Caribbean the development and control over the common law.”⁴⁸

In the Anglo-Caribbean, and consistent with its common law heritage, there has also been a developmental emergence of constitutional common law. Wit J, in the seminal case of Attorney General v Joseph,⁴⁹ and within one year of the CCJ’s beginning, explains that ‘the interpretation of Caribbean Constitutions is a legal activity in its own right.’⁵⁰ That the (English) common law cannot be the point of departure of Caribbean constitutional law because that common law is focused on the unwritten English Constitution which is fundamentally different from Caribbean constitutions.⁵¹ And further, that the realities of parliamentary democracy in the UK and constitutional democracy in the Caribbean are not at all the same. Thus, he opines: ‘Caribbean constitutional law will majestically and inexorably unfold as it gradually advances from one case to another.’⁵²

Hence, from the very origins of the CCJ’s jurisprudence, one sees the judicial imprimatur for the emergence of a distinct Caribbean constitutional common law. It is in this endeavour that the Court has most demonstrated its capacity to ‘repatriate to the Caribbean the development and control over the common law.’⁵³

Thus, the CCJ has recognised the need to develop the general Caribbean common law to align with constitutional standards, particularly when existing common law does not adequately reflect constitutional values and norms.⁵⁴ Thus, in Lucas v Chief Education Officer,⁵⁵ Wit J would point out:

“Although the Constitution of Belize does not specifically provide … that the common law should be developed to bring it up to par with constitutional standards, it is certainly not prohibited to do so. On the contrary, as section 2 of the Constitution indicates, any law, written or unwritten, that is inconsistent with the Constitution shall, to the extent of the inconsistency, be void. I would think that this includes an invitation … to mould and develop the common law in order to make it more just, fair and consistent with constitutional standards. One such standard, for example, isproviding an injured person with proper relief for wrongful conduct, which is a standard that directly and necessarily flows from the fundamental right to protection of the law.”

What this illustrates, is the CCJ’s commitment to ensuring that constitutional principles are upheld and that a Caribbean common law evolves to meet the needs of Caribbean societies. Wit J should, appropriately, have the last say at this point: ‘There is in my view nothing wrong with such an approach. The common law is not static; it never has been.’⁵⁶ And further:⁵⁷‘Being judge-made, the common law can also be re-made, adapted and developed by judges. This does in no way violate the separation of powers. … Judicial lawmaking, which usually takes place in areas that since time immemorial have been covered by the common law, can always and at any time be superseded by legislation created by Parliament.’ One cannot get a clearer exposition of the CCJ’sstance on the development of Caribbean jurisprudence, a stance rooted in Caribbean constitutionality and a rights-centric, rights privileging approach to law, governance, and society.

Constitutional Contexts and Conundrums

Before we get to a more detailed exploration of the CCJ’s development of a constitutional common law, some background and context is useful. Anglo-Caribbean constitutions have chosen to organise their states and lives according to the architecture of their constitutions. Using Belize as illustrative, Anglo-Caribbean constitutions are the ‘supreme law’.⁵⁸ They declare Caribbean states to be ‘sovereign democratic State(s).’⁵⁹ The rule of law is foundational,⁶⁰ and all have entrenched certain fundamental rights and freedoms.⁶¹ Thus, Anglo-Caribbean states have opted for a ‘rights centric, rights privileging’ model of constitutional democratic governance that permeates all aspects of the state, and restrains all exercise of state power.

The governance structure of these constitutions also organises the state generally among three branches – the executive, legislature, and judiciary (the so-called separation of powers). All

branches are subject to this ‘rights centric, rights privileging’ governance model, as indeed are all state authorities and public bodies.

Yet, a persistent point of debate in Caribbean constitutionalism occurs because of sometimes uncritical and naive acceptance of UK constitutional legal theory, convention, and jurisprudence. In constitutional matters, the doctrine of the separation of powers is illustrative.

In the UK, Parliamentary sovereignty is constitutionally normative. The UK is thus referred to as a Parliamentary democracy. This understandably and rationally leads to how doctrines such as the separation of powers are epistemologically experienced and articulated. In the Caribbean, our point and process of constitutional embarkation are radically different. We exist in constitutional democracies in which the constitution of each state is supreme and normative.

Thus, unlike in the UK, in which, as among the three conventional branches of government (executive, legislature, and judiciary), the legislature is supreme, in the Caribbean this is not so, and not intended to be so. In the Anglo-Caribbean, as among the three branches, if anything, the judiciary is ‘first among equals’ (primus inter partes). Why? Because under Anglo-Caribbean constitutions, the courts can strike down laws passed by the legislature as well as executive decisions and actions, by virtue of constitutional review.⁶² As Wit J put it in Joseph,⁶³ ‘Caribbean parliaments are not at liberty to legislate whatever or however they see fit without having regard to the limits enshrined in the constitutions which ultimately have to be construed, and guarded, by the Judiciary.’

This is not the case in the UK – Parliament is the supreme legal authority which can create and terminate laws; the courts cannot strike down legislation.⁶⁴ Their constitutional role is to interpret (and at times clarify) and apply laws made by Parliament. Thus, unlike in Caribbean states, where supreme courts have the jurisdiction and power to declare primary legislation void, the UK Supreme Court has no such jurisdiction or power – because of the doctrine of parliamentary sovereignty.

Post-colonial Constitutional Dissonance

This dissonance, and the influence of parliamentary sovereignty, is most acutely revealed in the recent 2022 Privy Council (JCPC) judgment in Chandler’s case.⁶⁵ Essentially, the issue was about the constitutionality of the mandatory death penalty (execution by hanging) and whether it is saved from constitutional scrutiny and review by general saving law clauses in the Constitution. The JCPC has always agreed, and this is universally accepted as so, that the mandatory death penalty is in breach of Caribbean bills of rights and is unconstitutional. However, what had earlier resulted in strongly and closely divided opinions before the JCPC,⁶⁶ in Chandler’s case became the unanimous opinion of a nine-member panel made up entirely of UK judges.⁶⁷

The case brings into sharp relief the differences between the JCPC’s approaches to Caribbean constitutionalism and bills of rights, and that of the CCJ. And I think effectively demonstrates how the CCJ is developing its constitutional common law in ways that create Caribbean jurisprudence. Taking a deeper look at the matter is therefore helpful for today’s explorations.

As prelude, in July 2004, by a narrow 5:4 majority in Boyce v R,⁶⁸ a nine-member panel of the JCPC upheld the mandatory death penalty in Barbados. The majority held that the savings law clause, in the Constitution, completely ousted the jurisdiction of the court to review existing laws, effectively shielding these laws from constitutional scrutiny.⁶⁹ In fact, Boyce reversed an earlier decision of the JCPC (Roodal v State of Trinidad and Tobago, 2003), which had held by a 3:2 majority that the mandatory death penalty in Trinidad and Tobago was open to constitutional review and unconstitutional.⁷⁰ In 2020, in Chandler’s case, the very issue returned to the JCPC in an appeal from Trinidad and Tobago (effectively inviting the JCPC to review its own earlier decision in Matthew v State of Trinidad and Tobago which had adopted the reasoning of Boyce). ⁷¹

In the interim and before Chandler was determined by the JCPC, the CCJ in a series of decisions on the very issue, declined to follow the JCPC’s reasoning in Boyce v R and aligned itself more with the reasoning of the majority in Roodal’s case and the minority in Boyce.

In 2018, in Nervais v R,⁷² an appeal from Barbados, the CCJ heard and upheld appeals from Barbados against mandatory death sentences – concluding that the savings clause did not protect the mandatory death penalty. Byron P reasoned that it was the ultimate role of the judiciary, and not the executive or the legislature, to ensure that laws were in conformity with the Barbadian Constitution. He stated the following about the savings law clause:⁷³

“The general saving clause is an unacceptable diminution of the freedom of newly independent peoples who fought for that freedom with unshakeable faith in fundamental human rights. The idea that even where a provision is inconsistent with a fundamental right a court is prevented from declaring the truth of that inconsistency just because the laws formed part of the inherited laws from the colonial regime must be condemned.”

Clearly this is Caribbean jurisprudence emancipating itself from coloniality. Indeed, Byron P would explain further:⁷⁴

“It is incongruous that the same Constitution, which guarantees that every person in Barbados is entitled to certain fundamental rights and freedoms, would deprive them in perpetuity from the benefit of those rights purely because the deprivation had existed prior to the adoption of the Constitution. … This cannot be the meaning to be ascribed to that provision as it would forever frustrate the basic underlying principles that the Constitution is the supreme law and that the judiciary is independent.”

Also in 2018, in McEwan v Attorney General of Guyana,⁷⁵ the CCJ determined an appeal concerning the question whether the savings clause in the Constitution of Guyana also insulated existing laws against constitutional review. The law in question⁷⁶ made it an offence for a man to wear female clothing in a public place for an improper purpose. Saunders P, citing, Nervais case and [59] in particular, stated:⁷⁷

“Law and society are dynamic, not static. A Constitution must be read as a whole. Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and its underlying spirit. If one part of the Constitution appears to run up against an individual fundamental right, then, in interpreting the Constitution as a whole, courts should place a premium on affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public interest.”

In Chandler, the JCPC had granted permission to appeal because of the judgments of the CCJ in Nervais and McEwan and for it to consider whether it should depart from its earlier jurisprudenceas explained in Boyce and Matthew.⁷⁸ Essentially, the JCPC had to choose whether to follow the CCJ’s rights-centric, rights privileging approaches. The JCPC declined to do so,⁷⁹ relying on the principle of stare decisis⁸⁰ and ultimately choosing judicial restraint and deference to parliament (as the arm of state responsible for making and changing written laws, the constitution being such).

The JCPC would opine, ideologically consistent with a constitutional (and judicial) mindset of parliamentary supremacy:⁸¹ ‘Nonetheless, such a provision is not unconstitutional. The 1976 Constitution has allocated to Parliament, as the democratic organ of government, the task of reforming and updating the law, including such laws.” In this approach, the JCPC also eschewedthe living tree approach espoused by the CCJ,⁸² and as well the CCJ’s assertions that the separation of powers, and rule of law, can function as overriding constitutional principles.⁸³

In Nervais and McEwan (and in other decisions),⁸⁴ the CCJ has set out its ‘rights centric, rights privileging’ approach to constitutional review. An approach that the JCPC has been unable to embrace, even as it accepts that ‘the jurisprudence of the CCJ show(s) that there were and are tenable arguments on both sides.’⁸⁵ Yet, and in the face of these ‘tenable arguments,’ the JCPCwould choose reliance on the doctrine of stare decisis, ‘standing by what has been decided,’ because this was ‘a fundamental principle of the common law,’ and choosing not to depart from its prior approaches.⁸⁶ A remarkable position, to choose to uphold unconstitutional colonial laws, when there is a self-confessed ‘tenable’ choice, given that what is at stake are fundamental rights and freedoms. And even more remarkable given the principle of constitutional supremacy and the power, indeed, the duty, of constitutional judicial review that is vested in the courts.

Irony

What may be an even greater irony, is what Dr Leonardo Raznovich has insightfully pointed out, referencing the UK’s Colonial Validity Act 1865,⁸⁷ as the effect of the JCPC’s decisions in Boyce v R and Chandler.⁸⁸

“Moreover, the majority in Boyce had to develop an entirely novel constitutional doctrine, which vested Caribbean governments, operating within a savings clause-based system … with total impunity to affect, without judicial control, the colonial machinery of social control and oppression that the UK left behind.The novelty was that this would have been legally impossible in colonial times

– colonial laws in breach of colonial constitutions were ‘void and inoperative’ (Colonial Laws Validity Act 1865); yet, the day after independence, the same colonial law was shielded by the JCPC from being found unconstitutional, curtailing checks and balances, leaving Caribbean people worse off after their independence than under the UK´s colonial regime.”

Recall that the Anglo-Caribbean Independence Constitutions, from 1962 onwards in territories like Jamaica (1962), Trinidad and Tobago (1962), Guyana (1966), and Barbados (1966), adopted written constitutions. And these written constitutions almost all contain a supremacy-inconsistency clause. That is a clause basically stating: ‘This Constitution is the supreme law of [the State] and, if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.’⁸⁹

This is a direct continuation of the ‘void and inoperative’ formula used in the Colonial Laws Validity Act,⁹⁰ which was transplanted into and entrenched in the Anglo-Caribbean independence constitutions. Thus, conceptually, the Colonial Laws Validity Act’s principle of invalidity for unconstitutional (inconsistent) colonial laws, is the direct precursor of the current constitutional supremacy-inconsistency clauses in Anglo-Caribbean constitutions. And the doctrine of constitutional supremacy is directly derived from the colonial policy that invalid laws inconsistentwith constitutional instruments had no force. Yet the JCPC in Chandler’s case remained hamstrung!

I will give the last word on this aspect to Dr Raznovich. Writing in 2023, he would opine:⁹¹ ‘Applying the JCPC’s ruling in Chandler, prima facie, it would lead one to the inevitable conclusion that regardless of how “inhumane or degrading” those laws are they are nonetheless constitutional and hence enforceable in the eyes of the JCPC.’⁹²

Privileging Rights and Freedoms

The differences in approaches between the JCPC and the CCJ are stark. In Anglo-Caribbean constitutional democracies, the separation of powers doctrine encompasses the supremacy of the constitution, the independence of the judiciary, and the supervisory jurisdiction and duty of the courts in the exercise of due power, to strike down legislation and/or executive actions when required to do so. Hence, for the CCJ the courts are the ultimate guardians of democracy, and in a rights-centric, rights privileging model of governance, the courts can override a savings law constitutional provision in order to prioritise, privilege, and uphold fundamental rights and freedoms.

This privileging of fundamental rights and freedoms has found unique expression in the CCJ’s Caribbean jurisprudence, especially in the trilogy of cases we have already considered. In Nervais v R,⁹³ McEwan v Attorney General of Guyana,⁹⁴ and Bisram v DPP,⁹⁵ the CCJ would uphold the primacy of human rights in the context of establishing a hierarchy of constitutional principles, rendering savings law clauses and all laws subject to their values. And as pointed out, in McEwan’s

case, the CCJ would emphatically assert:⁹⁶ ‘The hallowed concept of constitutional supremacy is severely undermined by the notion that a court should be precluded from finding a pre-independence law, indeed any law, to be inconsistent with a fundamental human right.’

The Dragon is Dancing: Chiastic Approaches

Marcus Garvey’s plea for Caribbean peoples to emancipate themselves from mental slavery, has taken root in the CCJ’s developmental approaches to Caribbean constitutional jurisprudence. Approaches well described as ‘chiastic’.

We have seen how the CCJ has asserted the privileging of rights and freedoms in relation to savings law clauses. But its developmental approaches to Caribbean constitutional jurisprudence are bearing fruit in other spaces. In Marin v R,⁹⁷ the CCJ in a unanimous judgment, shared its conceptual approach to its developing constitutional jurisprudence by coining the term ‘a chiastic jurisprudence’. The CCJ would describe this concept as follows:⁹⁸

“What has begun to emerge is a sort of chiastic analytical pattern (emerging out of a resonant chiastic epicentre) to the approaches to Caribbean constitutional interpretation. … [It is] a more inclusive and encompassing method … It is a patternin which there is an evolutionary flow towards greater symmetry and a balancing of parts, of what is a movement towards a more unified interpretative whole.”

The centre point is the recognition and application of the insight that Caribbean constitutions are supreme and sui generis. Thus, the interpretation of Caribbean Constitutions is a legal activity in its own right. This sui generis search for meaning begins with the character and origins of the instrument; is grounded in a local and regional sitz im leben; reaches simultaneously backwards-and-forwards temporally into local and incorporated international intentions and aspirations; and is also in-formed by unique ideological interpretative approaches.⁹⁹

Some of these unique ideological and in-forming approaches, that have their true origins in a constitution’s sui generis character, include interpretations that: a) are guided by the principle of giving full recognition and effect to fundamental rights and freedoms; b) are open minded; c) are generous, broad, and purposive; d) treat a constitution as a living instrument capable of responding to evolving societal attitudes and norms; e) are present and future facing; f) are democratically justifiable; and g) are consciously independently developmental.

As explained in Marin’s case,¹⁰⁰ the judges of the CCJ have sought to meld this sui generis centre and these core ideological in-forming approaches, as they seek to give voice to a more inclusive and encompassing model of constitutional interpretation. The model is intended to prioritise substance over form, without disregarding the intimate and integral interconnectedness between legal form and legal essence. It is a model that recognises and places at the centre of the hermeneutical exercise the sui generis nature of constitutional interpretation. Thus, the model is both holistic and chiastic.

This inclusive, encompassing, chiastic approach has placed rights and freedoms at the centre of the hermeneutical endeavour. In doing so, it incorporates integrity as an adjudicative principle, which therefore involves seeing and interpreting the constitutional text as a coherent whole in all its intersecting contexts.¹⁰¹

Thus, and as a recent example of a chiastic approach, in The Barbados Defence Force v Harewood,¹⁰² a 2024 decision of the CCJ, the Court, in the context of a military court-martial,would assert the interpretative impact of constutional values and standards applied to the Barbados Defence Act, as follows: “There can also be no doubt that in Barbados the Constitution is the supreme law and that all other laws are subject to its dictates, its standards, core values and principles. Furthermore, in Barbados the rule of law prevails¹⁰³ and the protected fundamental rights include the protection of the law (and the inherent and accompanying right to due process).”¹⁰⁴

The Dragon is Dancing: Chiastic Consequences

By placing the Basic Deep Structure and fundamental rights and freedoms at the centre of Caribbean constitutionalism, and by applying the supremacy-inconsistency principle as an interpretive lens, Caribbean constitutionalism has moved from the periphery to the center of

law making, legal interpretation, and the application of the law.

Hence the approach’s chiastic consequences. First, several CCJ decisions have asserted that the constitutional values and principles of the rule of law and the protection of the law are constitutional norms that can be independently enforced. In this respect, they can both be classed in the same category as the Separation of Powers and Judicial Independence, and as part of the Basic Deep Structure of Caribbean constitutionalism. They are therefore overarching norms that are fundamental to Caribbean constitutionalism. See for example, Attorney General of Barbados v Joseph;¹⁰⁵ Lucas v Chief Education Officer;¹⁰⁶ Maya Leaders Alliance v Attorney General of Belize;¹⁰⁷ Nervais v R;¹⁰⁸ and McEwan v Attorney General of Guyana,¹⁰⁹ and note, that the JCPC, in Chandler’s case has disagreed with this aspect of theCCJ’s constitutional jurisprudence.

The impact of this development of constitutional jurisprudence by the CCJ is that the rule of law and the right to protection of the law may also, in appropriate cases, require the relevant organs of the State to take positive action in order to secure and ensure the enjoyment of basic constitutional rights.¹¹⁰

The Maya Leaders Alliance case is a good example of both of these aspects of protection of the law. In Maya Leaders Alliance, the CCJ affirmed the customary land rights of the Maya peoples in respect of land in Belize and emphasised that the constitutional right of protection of the law ought not be viewed only through the lens of access to courts or quasi-judicial bodies. The Court held that there is a justiciable principle of the protection of the law, and the rule of law. The CCJ found that the Government of Belize had breached Maya community members’ right to protection of the law by failing to ensure that the existing land law system recognised and protected Maya land rights, in circumstances in which there was a positive responsibility on the State to do so.¹¹¹

Second, by classifying a constitutional value or principle or feature as part of the Basic Deep Structure of a constitution (certain non-derogable features, principles, and values), what becomes normative, and authoritative, is ultimately not the letter of the text, but the Basic Deep Structure values, principles and features that underpin, inform, and constitute the text as a constitution. In effect, the decision in Nervais is monumental in Caribbean jurisprudence, because it establishes that even the literal text of a constitution (a saving law cause) is not inviolable and is at once subject to certain basic underlying principles. See Belize International Services Ltd v Attorney General of Belize.¹¹²

Third, state contracts and administrative good governance are also subject to these fundamental constitutional values and principles. In Belize International Services Ltd,¹¹³ the CCJ would assert that:

“The State is indeed under the Constitution obliged to treat with contracting parties in accordance with the rule of law, not understood as a mechanical but as a rich and normative principle, and, flowing therefrom, the principle of good governance. As indicated, the Constitution is a qualitative and normative instrument primarily containing directions and instructions for the State and its agents. Good governance is down to earth fairness and reasonableness in the public domain. And in contract law, the duty of the Government implies treating with contracting parties fairly, honestly, openly, in short – in good faith.”

This Good Faith constitutional principle is also applicable more widely:¹¹⁴

“[A]s a general principle, the executive and all state and public agencies and authorities are subject to the standards of accountability and good governance that the constitutional imperative of the rule of law demands, in all of their dealings with private enterprise third parties, including in the making, changing, and breaking ofcommercial contracts.”

Fourth, general statutory interpretation is also significantly impacted by the CCJ’s chiastic approaches to constitutional interpretation. In Attorney General of Guyana v Thomas,¹¹⁵ the CCJ would explain:

“[132] This appeal raises several matters of pure statutory interpretation that have generated anxious argument, and that are amenable to multiple rational lines of reasoning.

[135] It seems that a court faced with choices as to multiple interpretations of statutory provisions needs to have an orienting filter that guides the options that are best suited for the circumstances. One such filter which demands priority, inCaribbean states such as Guyana, is the deep basic structure and core constitutional values and principles to be found in Guyanese constitutionalism.

[147] It is by now uncontroversial that this Court, whenever faced with multiple legitimate choices as to the interpretation and application of law, that it will choose the approaches that most align with relevant and applicable constitutional deep structure values, human rights principles, and international obligations and standards.”

The rationale for this approach is anchored in what the CCJ describes as ‘… its hermeneutic of constitutionally grounded open inclusivity.’¹¹⁶ It is an approach that ‘applies … Parliamentary intent that aligns more readily with Guyanese constitutionalism.’¹¹⁷

In OO v BK,¹¹⁸ the CCJ would consolidate its constitutional approaches to statutory interpretation:

“This Court has pointed out that constitutional democracies function under the rule of law and in the context of constitutional supremacy. Accordingly, where the issue of statutory interpretation is at play, the Court should interpret legislation not only to achieve the objectives of the legislation, and the intention of Parliament but to achieve alignment with (1) fundamental human rights and core constitutional values and principles contained in Commonwealth Caribbean Constitutions, and (2) international treaty obligations and commitments of these States.”

This application of the rights-centric, rights privileging approach of the CCJ means that in Anglo-Caribbean constitutional democracies, all statutory interpretation must include a consideration of whether the law as stated can be interpreted in a manner that is consistent with the constitution (as to the extent that there is an inconsistency, the law is void – the supremacy-inconsistency principle). Simply put, when engaging in statutory interpretation, all legislation must also be filtered through constitutional lenses.¹¹⁹ Translated methodologically:¹²⁰

“Thus, two principles of statutory interpretation emerge for states which exist in the context of constitutional supremacy. Methodologically, a) respect for fundamental rights and basic deep structure principles,¹²¹ and b) formal international treaty commitments are both lenses through which all statutes must be viewed, interpreted, and applied so as to adhere to and be consistent with, so far as is appropriate, thosecore values, principles, and commitments.”

And as stated further in Commissioner of Police v Alleyne:¹²²

“…these two rules of statutory interpretation must be considered and applied. This is so because in a constitutional democracy where the Constitution and not Parliament is supreme, it is a constitutional imperative. … [A]pplying these two rules of statutoryinterpretation … is not an ‘add on’ to supplement some primary interpretative process, but is integral to the task of statutory interpretation whenever a statute falls to be interpreted and applied. The Constitution is not on the periphery of statutory interpretation, it is at the centre.“

Fifth, what the above yields quite rationally is a ‘modification first’ approach to statutory interpretation. In OO v BK,¹²³ and in the context of Barbados, the CCJ would explain:¹²⁴

“In Barbados, the ‘modification first’ principle applies to all pre-independence laws. The principle mandates construing these laws so as to bring them into conformity with relevant constitutional provisions and principles/values.

It evidences statutorily the supremacy principle in s 1 of the Constitution which is more generally stated and applicable. The duty to modify is however demonstrative of the deeper constitutional principle of conformity, which in its truest sense is a principle of statutory interpretation and application.“

Earlier, and in the context of Guyana, the CCJ had explained this modification first approach as follows:¹²⁵ ‘[M]odification first ennobles [the Constitution] by respecting and advancing [its] cherished ethos.’ Modification first is in its outcome a practical, pragmatic, holistic, rights-centricand rights privileging approach to statutory interpretation, that accords with juridic common sense.

As was explained in greater detail in Bisram v DPP:¹²⁶

“It avoids the artificial conundrum that a law that plainly infringes fundamental rights must be held to be constitutional and valid, if, paradoxically, one focuses only on a fundamental rights challenge to it, but the same law may be held unconstitutional and invalid if one focuses on its tension with deep structural constitutional concepts… Or that the savings clause, to take yet another example, preserves the validity of an existing law that seriously contravenes fundamental rights, but if parliament makes a valiant good faith effort at mitigating the harshness of that law, the same then becomes liable to be invalidated by the courts as being unconstitutional.”

Sixth, gendered judging, that is, an approach to adjudication that is methodologically gender sensitive, is also informed by constitutional values and principles and relevant social context realities. Following this path, the CCJ would articulate a contextually informed ‘hermeneutic of suspicion’ and inquiry into adverse effects methods of legal interpretation.

Methodology for gendered approaches to adjudication. In Nicholson v Nicholson,¹²⁷ the CCJ explicitly adopted such a gender sensitive approach to adjudication grounded in constitutional imperatives, values and principles. In a case brief prepared by Noelle Nicolls,¹²⁸ the following analysis is derived:

“Nicholson v Nicholson, a land rights dispute, represents a seminal case study in the application of the CCJ’s “rights-centric constitutionalism”, which is unapologetically decolonial. The case sets a significant precedent for deconstructing and disrupting historical legal methods, highly susceptible to unconscious gender bias and patriarchal mindsets, that have rendered discrimination invisible and normative, especially for historically marginalized groups, where, if not scrutinized through a “hermeneutic of suspicion,” they would continue to perpetuate inequality and injustice. Justice Jamadar provides substantive comment and instruction on the application of this methodology, using “a gender sensitive adjudicatory lens” to simultaneously uphold justice and address systemic inequalities.”

Nicholson v Nicholson involved a dispute over land between a mother and her two children following the death of their husband and father. The deceased had executed a will, which devised various parcels of land to his wife and children (A and B). One of these parcels (which had been jointly owned by the wife and husband) was to be divided between one child (A) and the mother, but the mother, after the death of her husband, transferred the entire parcel to the other child (B) – assuming that the joint tenancy subsisted and by right of survivorship she was the owner of the entire parcel on the death of her husband.

Child A sought to recover the land, alleging that the land was unlawfully transferred and that she was entitled to it under the will. The High Court ruled in favour of the wife and child B, finding that child A had failed to prove that the joint tenancy between the wife and husband had been severed or released (by the wife) by the making of the will and by other conduct. The Court of Appeal reversed this, finding that there had indeed been a severance of the joint tenancy, and therefore the gift of the deceased to child A was valid in relation to the deceased’s share on death.

What was at stake in the case was whether under the relevant law,¹²⁹ there had been an equitable inter vivos release by the wife to her husband of her interest and title in the parcel (in which eventthe husband at death would have been the sole owner). Or whether what had occurred on the facts amounted to a severance – in which event both the wife and husband held the lands as tenants in common. The CCJ concluded that at the time of death of the husband, the parcel was held by the wife and the deceased as tenants in common (that there had been severance but no release), with all the legal and equitable implications that attach to such co-ownership.

The Court’s gender sensitive developmental jurisprudence in this case is grounded in a right centric, rights privileging approach.¹³⁰ It gives priority to constitutional values and principles, international human rights, and Caribbean social context realities.¹³¹ In doing so it introduced methodologically the requirement for an analytical ‘hermeneutic of suspicion’ in certain circumstances,¹³² and corresponding standards of proof to a degree of cogency on a balance of probabilities.¹³³

The CCJ noted that when historically disadvantaged groups are to be affected by virtue of the interpretation and application of statutory provisions, such as married women in the context of property rights, there arises a need for a hermeneutic of suspicion in the application of the law. Thus, in deciding whether to apply equitable release under s 38(2) of the Law of Property Act to the facts of this case, the evidence and surrounding circumstances in the case have to be scrupulously examined to ensure that presumptive social context realities are properly reckoned with and accounted for.

The CCJ applied such a gender sensitive adjudicatory lens and decided that if one is to find a release in law, by which a married woman is thereby completely deprived of all her rights and interests in jointly held property, the evidence must be clear, conclusive, and beyond any ambiguity or equivocation. The Court noted that in the context of married persons in the Caribbean, andbearing in mind the social context considerations mentioned, generally, where it is argued that a wife has released to her husband her title in lands held by both as joint tenants, (i) the essential formalities for the disposition of title must be established, and (ii) a hermeneutic of suspicion must be applied to the facts and circumstances.

The CCJ noted that it would be an extraordinary exception to have a release and transfer of title in land by conduct and observed that a wife whose husband severs title in a joint tenancy in which his wife is a co-owner, or a wife who does the same in those circumstances, results in the wife retaining an interest in the lands as a tenant in common. And further, that such a result does not undermine rights of women under the constitution and under international human rights law, as it does not operate to the absolute or disproportionate disadvantage of or to cause irreparable harm to a wife in relation to land ownership, and its implications for her agency, autonomy, and independence. However, a release in similar circumstances is more questionable because of the potential for disadvantage and harm. Hence the relevance in such circumstances of the hermeneutic of suspicion and the inquiry into adverse effects as a method of legal interpretation. The Courtexpressed the view that the appropriate standard of proof for the party asserting release, ought to be cogency on a balance of probabilities.

Seventh, the CCJ has also explained the need for constitutionally driven approaches to social justice issues. In CGI Consumers’ Guarantee Insurance Co Ltd v Stevenson,¹³⁴ the CCJ addressed its collective judicial mind to the question: How is Caribbean social justice legislation to be interpreted and applied in Caribbean constitutional and social contexts?¹³⁵

In November 2007, the owner and driver of a motor vehicle accidentally hit and killed a pedestrian. At the time of the accident, there was a current policy of insurance in respect of the vehicle. However, the owner’s driver’s licence had expired in June 2007 and remained expired until the first working day after the accident when it was renewed by paying the necessary renewal fee. The issue was whether the insurance company was liable to indemnify the deceased’s estate for a judgment duly obtained against the owner/driver. That is, was the insurer liable for the loss caused to the deceased third party while driving on an expired licence in circumstances where the insurance policy excluded coverage for drivers who do not hold a valid licence (the licence validity, privity of contract issue), and in light of Part IV and s 43 of the Road Traffic Act (RTA, third-party liability).

The CCJ classified Part IV of the RTA, including ss 37, 38, 43, and 48, as a piece of social justice legislation. Reading the statute in its Anglo-post-colonial Caribbean context, they applied the mischief rule of statutory interpretation and a purposive and consequentialist approach. The resultof that approach was that, but for certain specific statutorily prescribed exclusionary procedures, conditions, and circumstances, there is compulsory and enforceable coverage for injured innocent third parties up to certain statutory limits, and subject to meeting certain conditions.

The CCJ would posit four general principles for the interpretation of Caribbean social justice legislation, which it pointed out must be undertaken ‘in Caribbean constitutional and social contexts.’¹³⁶ These four principles are as follows:

(i) social justice legislation is quintessentially legislative policy in action. Thus, it must be read, understood and applied in Caribbean social and constitutional contexts (supremacy-consistency principle);¹³⁷

(ii) a first principles methodological approach is apt. That is, an approach informed yet unburdened by precedent, that looks through and interprets constitutional and legislative language and purpose, to achieve stated and aspirational goals in practical and legislatively legitimate ways;¹³⁸

(iv) social justice legislation should, when possible, be interpreted and applied practically, pragmatically, and with a fair measure of juridical common sense, carefully alive to current Caribbean contextual social, institutional, and economic realities.¹⁴⁰

Eighth, the CCJ’s inclusive and constitutive approaches to preambular clauses, which assert, as a minimum, their functionality as aids to interpretation (as part of the sovereignty and supremacy-consistency principles). And more developmentally, their function as bearers of core constitutional values and basic deep structure principles, such as the rule of law, and protection of the law.¹⁴²

Because the Anglo-Caribbean independence project and its accompanying constitutions were about a break from the past and new beginnings, constitutional preambles are of great salience and significance. And because constitutions are to be interpreted and applied as sui generis, the approach to how these Caribbean preambles function is unique and developmentally important.

They contain and assert the overarching and underpinning core values that seek to be expressed in the constitutional text. They are constitutive in that sense. The constitutional text emerges from out of and is grounded in these core preambular principles and values. They may be considered, by analogy, a more developed and transparent articulation of so called British ‘unwritten’ constitutional conventions.

The CCJ, in AG (BB) v. Joseph and Boyce¹⁴³,explains that Anglo-Caribbean post-independence constitutions are “founding documents” which are “undoubtedly qualitative and normative.” Writing in relation to the Barbados Constitution, the CCJ would state:¹⁴⁴

“It is in this (preambular) light that the Barbados Constitution as a whole has to be understood and interpreted, as these words fill the constitution with meaning reflecting the very essence, values, and logic of constitutional democracies …”

Significantly, the JCPC also parts company with the CCJ’s developmental approaches to the use of preambular clauses in Caribbean constitutionalism – preferring a more narrow and un-developmental approach. On 8 October 2025, in The Corporation of Hamilton v. AG of Bermuda¹⁴⁵, the JCPC would explain,¹⁴⁶ citing the CCJs decision in Nervais, that the CCJ hastaken a different approach to the interpretation of opening sections or preambles. For the JCPC, values and principles contained in preambular clauses or opening bills of rights sections in Anglo-Caribbean constitutions are, simply, “not separately or independently enforceable.”¹⁴⁷

Lovelace’s Dragon must be given the freedom and permission to dance and prance in proud and confident expressions of its uniqueness. This is no small feat, nor is it work for the timid or faint-hearted. Indeed, it is only by faith in ourselves, as Caribbean Peoples, that we can bring alive ‘from these scraps of cloth and tin that dragon, its mouth breathing fire, its tail thrashing the ground, its nine chains rattling, that would contain the beauty and terror that was the message’ of independence – a message to be asserted with sovereign self-assurance before the world.

EPILOGUE

The Hill¹⁴⁸

a

“This is the hill tall above the city where Taffy, a man who say he is Christ, put himself up on a cross one burning midday and say to his followers: “Crucify me! Let me die for my people. Stone me with stones … I will love you still.” And when they start to stone him in truth he get vex and start to cuss: “Get me down! Get me down!” he say. “Let every sinnerman bear his own blasted burden; who is I to die for people who ain’t have sense enough to know that they can’t pelt a man with big stones when so much little pebbles lying on the ground …”

There is often both a risk and a price to pay for emancipation from any kind of slavery, including mental slavery – if only because the cultural status quo tends to resist it so strenuously. This is no less so in the law and especially in these Caribbean lands of sea, surf and sand. After all, ‘who is I to die for people who ain’t have sense enough to know that they can’t pelt a man with big stones when so much little pebbles lying on the ground …’. We want to change things, but we don’t alwayshave the confidence or courage, neither do we necessarily want to take the risks or pay the price. Being pelted and hit by ‘big stones,’ can hurt a lot!

This Caribbean freedom is still a fraught enterprise, as is Caribbean jurisprudence. Yet just maybe, the CCJ’s developmental approaches to Caribbean constitutionalism can help lead the way; and in so doing illuminate the folly in other more ‘un-developmental’ approaches, as demonstrated, say, in Chandler’s case. And in this illumination, just maybe, the weight and drag of precedential pasts can be overcome, and the power of inapt status quo doctrines, deployed, say, as uncritical and unjustified applications of stare decisis or the presumption of constitutionality or the separation of powers, may finally be seen as the blocks to freedom and true independence that they can sometimes be.

As for today, and in relation to developing a truly liberating Caribbean jurisprudence, the question will likely remain for some time to come: ‘Is the juice worth the squeeze?’ Time alone will answer this question … but my hope is that we, People of the Caribbean, are up to the task.

APPENDIX

What is emerging as the CCJ’s developing constitutional jurisprudence was comprehensively explained in Marin v R¹⁴⁹, and can be summarised conceptually and methodologically, as follows:

1. Begin with Caribbean realities, situational and contextual considerations:

• Historical

• Sociological

• Economic

• Developmental

2. Recognise, realise, reclaim Caribbean sovereignty:

• Socio-historical and legal considerations

• Post-/Anti-colonial approaches

• Understand the power dynamics of status-quo and of precedent

3. Take a holistic rights-centric approach:

• Constitutional supremacy
• Hierarchy of constitutional values
• Democratic development
• Privileging of Human Rights

4. Overarching general principles of constitutional interpretation:

• Special nature and character of constitutions; Caribbean constitutions are sui generis; they have their own interpretative principles that arise from their special character, status, and origins as constitutions

• Paramountcy of constitutional values; Caribbean constitutions are the supreme law; consequence is that the interpretation of Caribbean Constitutions is a legal activity in its own right

• Inclusive and all-encompassing approaches

• Holistic and evolutionary approaches

• Chiastic approaches

5. More granular approaches to constitutional interpretation:

• Have regard to the Basic Deep Structure and Preambles to discern the fundamental ethos and values

• Regard a constitution as encompassing hierarchical and intersecting norms, values, principles; apply organic inter-textual approaches

• Distinguish between major and minor features of a constitution; interpretation and application follow suit

• Prioritise basic deep structure principles, the rule of law, and human rights

• Align with subscribed-to international values

• Have regard for the collective wisdom of judicial decisions from a range of jurisdictions

• Consider academic and other commentaries

6. Holistic approaches:

‘A Constitution must be read as a whole. Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and to its underlying spirit. … If one part of the Constitution appears to run up against an individual human right, then, in interpreting the Constitution as a whole, courts should place a premium on affording the citizen his/her enjoyment of the fundamental rights, unless there is someoverriding public interest.’ (McEwan [2018] CCJ 30 (AJ) GY at [41])

7. Rights-centric, rights privileging approaches:

‘The hallowed concept of constitutional supremacy is severely undermined by the notion that a court should be precluded from finding a pre-independence law, indeed any law, to be inconsistent with a fundamental human right.’ (McEwan [2018] CCJ 30 (AJ) GY at [39])

ENDNOTES:

1. Earl Lovelace, The Dragon Can’t Dance (Longman 1979) ch 3, 35–36. ↩︎
2. An idea first shared by Elron Elahie, Research and Programme Coordinator, Caribbean Association of Judicial Officers. ↩︎
3. The Seduction of the Minotaur (1961). ↩︎
4. Eric E Williams, Capitalism and Slavery (University of North Carolina Press 1944). It was first published in the United States in 1944. However, major publishers refused to publish it in Britain, on grounds including that it undermined the humanitarian motivation for Britain’s 1833 Slavery Abolition Act. It was not until 1964 that it was first published in England. ↩︎
5. Kenneth Morgan.‘Williams, Eric Eustace’ in Oxford Dictionary of National Biography (online edn, Oxford University Press). ↩︎
6. Marcus Garvey, ‘The Work That Has Been Done’(1938) Black Man 3(10) (emphasis added). ↩︎
7. Jamaica and Trinidad and Tobago, 1962; Barbados, 1966; Bahamas, 1973; Grenada, 1974; Dominica, 1974; Saint Lucia, 1979; Saint Vincent and the Grenadines, 1979; Antigua and Barbuda, 1981; Belize, 1981; Saint Kitts and Nevis, 1983. These dates reflect formal independence from Britain; prior to this, some states passed through the stage of Associated Statehood (under the 1967 West Indies Act), which granted full internal self-government but left external affairs and defence with the UK. Jamaica (1962), Trinidad and Tobago (1962), and Barbados (1966) skipped the Associated State stage and went straight to independence. ↩︎
8. Sir Grantley Adams of Barbados was its only Prime Minister (chosen from the elected Federal Parliament consequent on 1958 Federal Elections). ↩︎
9. Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Montserrat, Saint Kitts-Nevis-Anguilla, Saint Lucia, Saint Vincent, and Trinidad and Tobago. ↩︎
10. 54.1% to 45.9%. ↩︎
11. That is, if Jamaica (the ‘one’, and most populous state) left, the remaining nine (‘ten minus one’) could not sustain the Federation, thus it would amount to ‘zero.’ In May 1962, Eric Williams was the Premier of Trinidad and Tobago, and not its Prime Minister (Trinidad and Tobago was at the time still a British colony with internal self-government). ↩︎
12. Antigua and Barbuda, Bahamas, Grenada, Jamaica, Trinidad and Tobago, Saint Kitts and Nevis, Saint Vincent and the Grenadines.
      ↩︎
13. It was the first Commonwealth Caribbean country to do so. ↩︎
14. The Grand Anse Declaration was adopted on 4 July 1989 in Grand Anse, Grenada, at the Tenth Meeting of the Conference of Heads of Government of the Caribbean Community (CARICOM). It led directly to the Revised Treaty of Chaguaramas (2001), which formally established the CARICOM Single Market and Economy (CSME) and gave legal life to the CCJ (inaugurated in 2005) – envisaged as a regional treaty-based international trade court (for CSME matters) and as a final appellate court to replace the Privy Council. ↩︎
15. As of now, the following 12 CARICOM member states are fully part of the CCJ’s Original Jurisdiction and can take CSME disputes to the CCJ:
     
    Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, and Trinidad and Tobago.
      ↩︎
16. There is also a Referral jurisdiction, by which national courts can refer matters to the CCJ for consideration if RTC issues of Community law are raised in municipal proceedings that may be determinative in those proceedings. ↩︎
17. In 2001. ↩︎
18. The longest serving Commonwealth Secretary General (1975 to 1990). ↩︎
19. Sir Shridath Ramphal, ‘Creating A Regional Jurisprudence’ (Inaugural Distinguished Jurist Lecture Series, Trinidad and Tobago, Judicial Education Institute, 29 September 2011) 12 <https://www.ttlawcourts.org/images/JEI/DLS/speeches/Distinguished-Jurist-Lecture-2011.pdf&gt; accessed 10 October 2025. ↩︎
20. Oliver Wendell Holmes, ‘Learning and Science’ (Speech at a dinner of the Harvard Law School Association in honour of Professor C C Langdell (June 25, 1895) in Speeches (1896) 67-68. ↩︎
21. Ramphal, ‘Creating A Regional Jurisprudence’ (n 20) 12. ↩︎
22. Oliver Wendell Holmes, The Common Law (1881) 1 ↩︎
23. ibid. ↩︎
24. See for example, McDowall Broadcasting v Joseph [2023] CCJ 15 (AJ) LC. ↩︎
25. See for example, Kwang v Yokkei [2016] CCJ 9 (AJ) GY, (2016) 88 WIR 339 at [18]–[23]; Ramkishun v Fung-Kee-Fung [2010] CCJ 2 (AJ) GY, (2010) 76 WIR 328; Prashad v Persaud [2022] CCJ 5 (AJ) GY. ↩︎
26. In Hinds v R [1977] AC 195, 212-214, the JCPC would assert the Anglo-Caribbean constitutions are examples of Westminster model constitutions. ↩︎
27. [1977] AC 195, 212 (emphasis added). ↩︎
28. Ralph Carnegie ‘Floreat the Westminster Model? A Commonwealth Caribbean Perspective’, Meeting of Law Officers of Small Commonwealth Jurisdictions, 5-9 December 1988 (Commonwealth Secretariat, London, 1998). ↩︎
29. ibid (emphasis added). ↩︎
30. Hinds (n 28). ↩︎
31. [1963] AC 614. An appeal from the Federal Supreme Court of Nigeria. The case concerned the right of the Governor of the Western Region of Nigeria to remove a Premier from office. ↩︎
32. Nigeria gained full independence from Britain and became a sovereign state under its 1960 Independence Constitution on 1 October 1960. Its independence constitutional instrument is known as its Freedom Charter. ↩︎
33. Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy (CSME) (adopted
     5 July 2001, entered into force 1 January 2006) 2259 UNTS 293. ↩︎
34. Simeon McIntosh, Constitutional Reform in the Commonwealth Caribbean: Essays on Constitutional Reform, Process and Reform (Kingston: Caribbean Law Publishing Co 2002) 6 (emphasis added). ↩︎
35. Mc Ewan v A-G of Guyana [2018] CCJ 30 (AJ), (2019) 94 WIR 332 at [1]. ↩︎
36. Though not on an equal footing and in discrete areas. National law is considered supreme. Sharia law may be limited to family/personal law. Tribal/customary norms may govern marriage, inheritance, land, and localised conflict/dispute resolution.
      ↩︎
37. For example, Nigeria has over 250 ethnic groups, each with its own customary laws governing marriage, inheritance, land tenure, and traditional authority. And in the predominantly Muslim northern states, Sharia is recognised in criminal and civil matters. As well, in these states there are Sharia Courts of First Instance and Sharia Courts of Appeal, and appeals can go up to the Federal Court of Appeal and the Supreme Court, but only on constitutional or procedural issues (not on substantive Sharia legal issues). Thus, customary law and Sharia law are formally integrated into the judicial system, though both are subordinate to the Constitution. ↩︎
38. S v Makwanyane [1995] 3 SA 391 (Constitutional Court); Dikoko v Mokhatla  [2006] 6 SA 235 (Constitutional ↩︎
39. See for example, S v Makwanyane [1995] 3 SA 391 (CC). This landmark case abolishing the death penalty explicitly invoked ubuntu as a value that emphasises human dignity, compassion, reconciliation, and community. At [131], ‘To be consistent with the value of ubuntu ours should be a society that “wishes to prevent crime…[not] to kill criminals simply to get even with them.”’ At [306]–[312] (Mokgoro J) and at [223]–[227] (Langa J) both gave extended discussions on the constitutional relevance of ubuntu, even though it does not expressly appear in the 1966 South African Constitution. See also, Port Elizabeth Municipality v Various Occupiers [2005] 1 SA 217 (CC), an eviction case, at [37], ‘The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order.’ And Dikoko v Mokhatla [2006] 6 SA 235 (CC), a defamation case, at [68], ‘In our constitutional democracy the basic constitutional value of human dignity relates closely to ubuntu or botho, an idea based on deep respect for the humanity of another.’ ↩︎
40. Adrian Saunders, ‘The Role of the Caribbean Court of Justice as an Instrument of Peace and Justice’ (Jamaica 2018) 11. ↩︎
41. Lalchand v Supall [2024] CCJ 23 (AJ) BZ at [135] (emphasis added). ↩︎
42. Michelle Scobie, ‘The Caribbean Court of Justice and Regionalism in the Commonwealth Caribbean’ (2016) 4(1) Carib J Int’l Rel & Diplo 93 and 96 cited in Richard Albert, ‘Decolonial Constitutionalism’ 76.
      ↩︎
43. By post-colonial I mean the period after independence and includes the legacies of colonialism; however, by coloniality I mean the enduring structures, systems, ideologies, and mind-sets of colonialism that persist after independence. Thus, even though Anglo-Caribbean states may be independent, their governance structures, legal systems, ideologies, methodologies, and epistemologies may still be deeply permeated and influenced by, among other things, colonial logic, structures, and power dynamics. ↩︎
44. OO v BK [2023] CCJ 10 (AJ) BB, (2023) 103 WIR 36 at [148]. See also, Lalchand v Supall [2024] CCJ 23 (AJ) BZ at [60], [93]–96], [105]– 107], [127], [189]. ↩︎
45. OO v BK [2023] CCJ 10 (AJ) BB, (2023) 103 WIR 36 at [148]. ↩︎
46. Lalchand v Supall [2024] CCJ 23 (AJ) BZ at [134]. ↩︎
47. Richard Albert, ‘Decolonial Constitutionalism’ (2025) 25 Chi J Int’l L (forthcoming 2025) 5. ↩︎
48. ibid 77–78, citing Salvatore Caserta & Mikael Rask Madsen, ‘Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies’ (2016) 79 Law & Contemp Probs 89–90 (emphasis added). ↩︎
49. [2006] CCJ 3 (AJ) (BB). ↩︎
50. ibid at [17] (Wit J) (emphasis added). ↩︎
51. Because, among other things, Anglo-Caribbean constitutions are written, entrench and prioritise fundamental rights and freedoms, and have supremacy clauses which give courts the power to review and strike down legislation. ↩︎
52. Joseph (n 50) at [43] (Wit J) (emphasis added). ↩︎
53. Richard Albert (n 48) (emphasis added). ↩︎
54. See Lucas v Chief Education Officer [2015] CCJ 6 (AJ) BZ, (2015) 86 WIR 100 (Wit J) at [181]–[182], for a more impassioned plea. ↩︎
55. ibid at [180] (emphasis added). ↩︎
56. ibid at [181] (emphasis added). ↩︎
57. ibid at [182] (emphasis added). ↩︎
58. For example, Belize Constitution, CAP 4, s 2. ↩︎
59. ibid s 1. ↩︎
60. Preamble to the Belize Constitution, cl (d). ↩︎
61. Belize Constitution, CAP 4, Pt II; s 69, and sch 2. ↩︎
62. Belize Constitution, CAP 4, ss 2, 20–22 and 134. ↩︎
63. Joseph (n 50) at [17] (Wit J) (emphasis added). ↩︎
64. Kirk Meighoo and Peter Jamadar, Democracy and Constitutional Reform in Trinidad and Tobago (Ian Randle Publishers 2008) 22, 25. ↩︎
65. Chandler v The State (No 2) [2022] UKPC 19, (2022) 101 WIR 520 (TT). ↩︎
66. Boyce v R (2004) 64 WIR 37. ↩︎
67. Chandler (n 66). ↩︎
68. [2004] 64 WIR 37. ↩︎
69. See also, Matthew v State of Trinidad and Tobago [2004] UKPC 33, (2004) 64 WIR 412, in which the JCPC came to the same conclusion in the context of Trinidad and Tobago. In both Matthew and Boyce, the JCPC, by a majority of 5:4, decided not to follow its earlier decision in Roodal v State of Trinidad and Tobago [2003] UKPC 78, (2003) 64 WIR 270. (See Chandler (n 66) at [19]). ↩︎
70. Roodal v State of Trinidad and Tobago [2003] UKPC 78, (2003) 64 WIR 270. ↩︎
71. Chandler (n 66) at [13]; Matthew v State of Trinidad and Tobago [2004] UKPC 33, (2004) 64 WIR 412. ↩︎
72. [2018] CCJ 19 (AJ), (2018) 92 WIR 178. ↩︎
73. ibid at [58] (emphasis added). ↩︎
74. ibid at [59] (emphasis added). ↩︎
75. [2018] CCJ 30 (AJ), (2019) 94 WIR 332. ↩︎
76. A provision of the Summary Jurisdiction (Offences) Act, Cap 8:02 (the ‘cross-dressing law’). ↩︎
77. McEwan (n 76) at [41] (emphasis added). ↩︎
78. Chandler (n 66) at [50]. ↩︎
79. ibid at [54] et esq. And see [68] et seq. ↩︎
80. ibid at [57]–[61], and [64]–[65]. ↩︎
81. ibid at [98] (emphasis added). ↩︎
82. ibid at [62]. ↩︎
83. ibid at [70], [75] and [95]. ↩︎
84. See for example, Bisram v DPP [2022] CCJ 7 AJ (GY), (2022) 101 WIR 370 which was decided before Chandler. ↩︎
85. Chandler (n 66) at [74] (emphasis added). ↩︎
86. ibid at [33]–[50] and [74]; [57]; [97]–[98]. ↩︎
87. (28 & 29 Vict c 63). Under the Colonial Laws Validity Act 1865, a colonial law was invalid if it was (i) ss 2 and 3 – ’in any respect repugnant’ to an Act of the UK Parliament that extended to the colony, in which event it ‘shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative’, or (ii) ss 4 and 5 – inconsistent with the ‘manner or form’ of a constitutional instrument in a colony, in which event it was deemed ‘void and inoperative’ to the extent of the inconsistency. ↩︎
88. Leonardo Raznovich, ‘Piercing the Constitutional Veil: Privy Council Colonialism?’ (October 2025) COUNSEL Magazine 40 (emphasis added). ↩︎
89. See for example, Jamaica Constitution 1962, s 2; Trinidad and Tobago Constitution 1962, s 2; Barbados Constitution 1966, s 1; Belize Constitution 1981, s 2. ↩︎
90. 1865 (28 & 29 Vict c 63) . ↩︎
91. L J Raznovich, ‘Unconscionable Decisions of the Privy Council for the Caribbean: Deliberately Obtuse or Just “Unfamiliar”?’ (CLA News, June
     2023) <https://www.commonwealthlawyers.com/cla/unconscionable-decisions-of-the-privy-council-for-the-caribbean-deliberately-obtuse-or-just-unfamiliar-by-dr-l-j-raznovich/ > accessed 10 October 2025 (emphasis added). ↩︎
92. In the UK, The Murder (Abolition of the Death Penalty) Bill 1964 (UK) was passed and came into effect on 9 November 1964. This Act temporarily abolished the death penalty for murder in Britain for a five-year period and substituted it with a sentence of life imprisonment (s 1(1)). In 1969, in the UK, the death penalty was permanently abolished for murder. However, in the newly independent Anglo-Caribbean states the mandatory death penalty for murder was an existing law that was saved by savings law clauses contained in their independent constitutions. ↩︎
93. Nervais (n 73). ↩︎
94. McEwan (n 76). ↩︎
95. Bisram (n 85). ↩︎
96. McEwan at [39]. ↩︎
97. [2021] CCJ 6 (AJ) BZ. ↩︎
98. ibid at [29] (emphasis added). ↩︎
99. Marin at [31]. ↩︎
100. ibid at [34]–[35]. ↩︎
101. Professor McIntosh explains: ‘It expresses an interpretative ideal that the Constitution be interpreted in a way that makes it as just as it can possibly be.” Therefore, as an adjudicative principle, integrity requires that the various provisions of the Constitution be read as expressing a coherent scheme of justice and fairness …’. ↩︎
102. [2024] CCJ 15 (AJ) BB, at [2], and [31] – 32]. ↩︎
103. Citing the Preamble to Constitution of Barbados. ↩︎
104. Citing Nervis. ↩︎
105. Joseph (n 50). ↩︎
106. Lucas (n 55). ↩︎
107. [2015] CCJ 15 (AJ) BZ, (2015) 87 WIR 178. ↩︎
108. Nervais (n 73). ↩︎
109. McEwan (n 76). ↩︎
110. Lucas (n 55); Maya Leaders Alliance (n 105).
       ↩︎
111. Maya Leaders Alliance (n 105) at [47] The right to protection of the law is a multi-dimensional, broad and pervasive constitutional precept grounded in fundamental notions of justice and the rule of law. The right to protection of the law prohibits acts by the Government which arbitrarily or unfairly deprive individuals of their basic constitutional rights to life, liberty or property. It encompasses the right of every citizen of access to the courts and other judicial bodies established by law to prosecute and demand effective relief to remedy any breaches of their constitutional rights. However, the concept goes beyond such questions of access and includes the right of the citizen to be afforded, adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power. The right to protection of the law may, in appropriate cases, require the relevant organs of the State to take positive action in order to secure and ensure the enjoyment of basic constitutional rights. ↩︎
112. [2020] CCJ 9 (AJ) BZ, (2020) 100 WIR 109 at [320]. ↩︎
113. ibid at [16] (emphasis added). ↩︎
114. ibid at [305] (emphasis added).
       ↩︎
115. [2022] CCJ 15 (AJ) GY, (2022) 101 WIR 403 at [132], [135], [147] (emphasis added). ↩︎
116. ibid at [168] (emphasis added). ↩︎
117. ibid (emphasis added). ↩︎
118. OO v BK (n 46 at [67] (footnote omitted) (emphasis added). ↩︎
119. ibid at [71]– [74]. See also, Commissioner of Police v Alleyne [2022] CCJ 2 (AJ) BB, [2022] 2 LRC 590 at [23]–[25]. ↩︎
120. Commissioner of Police v Alleyne [2022] CCJ 2 (AJ) BB, [2022] 2 LRC 590 at [25]. ↩︎
121. ibid citing A-G v Joseph [2006] CCJ 3 (AJ), (2006) 69 WIR 104 at [20] (Wit J); Nervais v R [2018] CCJ 19 (AJ), (2018) 92 WIR 178 at [59]
      
     (Byron P); McEwan (n 76) at [41]–[45], [51] (Saunders J); Belize International Services Ltd v A-G of Belize [2020] CCJ 9 (AJ) BZ, [2021] 1 LRC 36 at [319]–[321], [350] (Jamadar J); Guyana Geology and Mines Commission (n 20) at [75]–[97] (Jamadar J); Tracy Robinson, Arif Bulkan and Adrian Saunders, Fundamentals of Caribbean Constitutional Law (Sweet & Maxwell 2015) para 3-028. ↩︎
122. Alleyne (n 118) at [27] (footnote omitted) (emphasis added). ↩︎
123. OO v BK (n 46). ↩︎
124. ibid at [167] (emphasis added). ↩︎
125. Bisram (n 85) at [63]. ↩︎
126. ibid at [63] (footnote omitted). ↩︎
127. [2024] CCJ 1 (AJ) BZ. ↩︎
128. Undergraduate law student, Mona Law LLB, Family Law II, September 2025. ↩︎
129. Law of Property Act, CAP 190, s 38(2) (BZ). ↩︎
130. Nicholson at [2]. ↩︎
131. ibid at [73]–[77]. ↩︎
132. ibid at [46]– [48], [73]–[77], [81]. ↩︎
133. ibid at [86]. ↩︎
134. [2025] CCJ 11 (AJ) BB. ↩︎
135. ibid at [93]. ↩︎
136. ibid at [93]. ↩︎
137. ibid at [94]. ↩︎
138. ibid at [95]. ↩︎
139. ibid at [96]. ↩︎
140. ibid at [97]. ↩︎
141. ibid at [96]. The right to life is guaranteed in s 11 of the Constitution of Barbados. ↩︎
142. See, Barbados Defence Force v Harewood, [2024] CCJ 15 (AJ) BB, at [2], fn 2. (rule of law), ↩︎
143. [2006] CCJ 3 (AJ) BB, at [18]-[19]. ↩︎
144. Ibid, at [18]. ↩︎
145. [2025) UKPC 50. ↩︎
146. Ibid, at [87]. ↩︎
147. Ibid, at [89]. ↩︎
148. Earl Lovelace, The Dragon Can’t Dance (Longman 1979) 9 (emphasis added). ↩︎
149. [2021] CCJ 6 (AJ) BZ. ↩︎

HOW TO CITE THIS ARTICLE: Peter Jamadar, Sea, Surf, Sand: The Caribbean Court of Justice’s Developmental Approaches to Caribbean Constitutionalism, Online Guest Lecture During The Global South Network Judges Guest Lecture Series, 14 October 2025, https://globalsouthnetwork.com/sea-surf-sand-the-caribbean-court-of-justices-developmental-approaches-to-caribbean-constitutionalism/